United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3606
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Mario J. Watson, *
*
Appellant. *
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Submitted: September 20, 2010
Filed: October 18, 2010
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Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
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WOLLMAN, Circuit Judge.
Mario J. Watson pleaded guilty to being a felon in possession of ammunition,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced to seventy
months’ imprisonment. Judgment was entered on April 27, 2009. Months later, the
district court1 received a letter from Watson, wherein he contested his sentence. The
letter was docketed as a motion to reduce sentence, and the district court denied relief
on October 30, 2009. Within ten days after the denial of his motion, Watson filed a
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
pro se notice of appeal, stating that he was appealing from the April 2009 judgment
and the October 2009 order.
Watson’s appeal from the judgment of conviction and sentence was filed
outside the deadlines set forth in Federal Rule of Appellate Procedure 4(b), a rule we
have long considered jurisdictional. Our holding, however, has been called into
question by the Supreme Court’s decisions in Bowles v. Russell, 551 U.S. 205 (2007);
Eberhart v. United States, 546 U.S. 12 (2005) (per curiam); and Kontrick v. Ryan, 540
U.S. 443 (2004). Accordingly, we appointed counsel to represent Watson and
directed the parties to address the following two issues: (1) whether Rule 4(b) is
jurisdictional, and (2) if Rule 4(b) is not jurisdictional, whether the government
forfeited any objection to the timeliness of the notice of appeal and whether the court
may enforce the time limit sua sponte. Thereafter, the government moved to dismiss
the appeal, and the parties briefed the issues listed above.
We now hold that Federal Rule of Appellate Procedure 4(b) is a
nonjurisdictional claim-processing rule. Watson’s notice of appeal from the judgment
of conviction and sentence was not timely filed, and the government properly objected
by motion and in its merits brief. Accordingly, we dismiss the appeal from the
judgment of conviction and sentence. As set forth below, Watson’s timely taken
appeal from the order denying his motion to reduce sentence is without merit, and thus
we affirm the order of denial.
I.
Federal Rule of Appellate Procedure 4(b) provides the time for filing a notice
of appeal in a criminal case. When judgment was entered against Watson, Rule
4(b)(1)(A) required that he file a notice of appeal “in the district court within 10 days
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after the later of . . . the entry of either the judgment or the order being appealed.”2
Upon a showing of excusable neglect or good cause, the rule allowed the district court
to extend the time to file the notice for “a period not to exceed 30 days from the
expiration of the time otherwise prescribed by this Rule 4(b).” Fed. R. App. P.
4(b)(4). Watson did not seek an extension and filed his notice of appeal several
months after the judgment of conviction and sentence was entered.
We have held that “[a] timely notice of appeal is mandatory and jurisdictional.”
United States v. Bonahoom, 484 F.3d 1003, 1005 (8th Cir. 2007) (per curiam)
(quoting United States v. Austin, 217 F.3d 595, 597 (8th Cir. 2000)); see also, e.g.,
United States v. Petty, 82 F.3d 809, 810 (8th Cir. 1996) (per curiam); United States
v. Anna, 843 F.2d 1146, 1147 (8th Cir. 1988). And we have dismissed for lack of
jurisdiction criminal appeals in which the notice was filed outside Rule 4(b)’s time
constraints. In light of recent Supreme Court decisions, we conclude that our
precedent that the filing deadline in Rule 4(b) is jurisdictional is no longer good law.
See Bowles, 551 U.S. 205; Eberhart, 546 U.S. 12; Kontrick, 540 U.S. 443. See
generally United States v. Williams, 537 F.3d 969, 975 (8th Cir. 2008) (“Although
one panel of this court ordinarily cannot overrule another panel, this rule does not
apply when the earlier panel decision is cast into doubt by a decision of the Supreme
Court.” (emphasis omitted) (quoting Patterson v. Tenet Healthcare, Inc., 113 F.3d 832,
838 (8th Cir. 1997)).
In Kontrick v. Ryan, the Supreme Court held that a party’s failure to comply
with certain filing deadlines in the Federal Rules of Bankruptcy Procedure did not
deprive the bankruptcy court of subject matter jurisdiction. 540 U.S. at 453-54. The
Court distinguished between statutory time constraints and deadlines provided in
claim-processing rules. Because “[o]nly Congress may determine a lower federal
2
In 2009, the time limit in Rule 4(b)(1)(A) was revised from ten days to
fourteen days. The method for computing time under the Rules was revised to include
Saturdays, Sundays, and legal holidays. See Fed. R. App. P. 26.
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court’s subject-matter jurisdiction” and the bankruptcy rules at issue were procedural
rules adopted by the Court for the orderly transaction of business, the Court held that
the rules were not jurisdictional. Id. at 454.
Although a jurisdictional time limit must be enforced, a party may forfeit or
waive its right to the enforcement of a nonjurisdictional claim-processing rule.
A court’s subject-matter jurisdiction cannot be expanded to account for
the parties’ litigation conduct; a claim-processing rule, on the other hand,
even if unalterable on a party’s application, can nonetheless be forfeited
if the party asserting the rule waits too long to raise the point.
Id. at 456. Accordingly, in Eberhart v. United States, the Supreme Court held that the
government forfeited its right to seek enforcement of Federal Rule of Criminal
Procedure 33 when it failed to make a timely objection. 546 U.S. at 19. The Court
determined that Rule 33 was a claim-processing rule and compared it to the
bankruptcy rules at issue in Kontrick: “It is implausible that the Rules considered in
Kontrick can be nonjurisdictional claim-processing rules, while virtually identical
provisions of the Rules of Criminal Procedure can deprive federal courts of subject-
matter jurisdiction.” Eberhart, 546 U.S. at 16. The Court repeated its admonishment
that “[c]larity would be facilitated if courts and litigants used the label ‘jurisdictional’
not for claim-processing rules, but only for prescriptions delineating the classes of
cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling
within a court’s adjudicatory authority.” Kontrick, 540 U.S. at 455.
In Bowles v. Russell, the Supreme Court reiterated the “jurisdictional
distinction between court-promulgated rules and limits enacted by Congress.” 551
U.S. at 211-12. The Court held that the time limits set forth in Federal Rule of
Appellate Procedure 4(a) are jurisdictional because the limits are derived from statute,
28 U.S.C. § 2107(a). Bowles, 551 U.S. at 212-13. Section 2107(a) provides that no
appeal from a civil judgment, order, or decree shall be reviewed by a court of appeals
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“unless notice of appeal is filed, within thirty days after the entry of such judgment,
order or decree.” The statute allows the district court to extend the time for appeal in
certain cases and provides the time constraints for those extensions. Because the
appellant had failed to file its notice of appeal within Rule 4(a)’s time constraints, the
notice was outside the statutory time frame, and the court of appeals lacked subject
matter jurisdiction to hear the case. Bowles, 551 U.S. at 213. “Within constitutional
bounds, Congress decides what cases the federal courts have jurisdiction to consider.
Because Congress decides whether federal courts can hear cases at all, it can also
determine when, and under what conditions, federal courts can hear them.” Id. at 212-
13.
Unlike Federal Rule of Appellate Procedure 4(a), Rule 4(b) is not grounded in
statute and is set forth only in a court-prescribed rule of appellate procedure. Court-
prescribed rules of practice and procedure, as opposed to statutory time limits, “do not
create or withdraw federal jurisdiction.” Kontrick, 540 U.S. at 453 (quotation and
citation omitted). Rule 4(b) is thus a claim-processing rule, like the rules at issue in
Kontrick and Eberhart. In accordance with all other circuits that have considered the
issue, we hold that Rule 4(b) is not jurisdictional. See, e.g., Virgin Islands v.
Martinez, No. 08-2694, 2010 WL 3489550 at *3 (3rd Cir. Sept. 8, 2010); United
States v. Neff, 598 F.3d 320, 323 (7th Cir. 2010); United States v. Urutyan, 564 F.3d
679, 685 (4th Cir. 2009); United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir.
2009); United States v. Byfield, 522 F.3d 400, 403 n.2 (D.C. Cir. 2008); United States
v. Frias, 521 F.3d 229, 232 (2d Cir. 2008); United States v. Garduño, 506 F.3d 1287,
1290 (10th Cir. 2007); United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.
2007) (per curiam); United States v. Sadler, 480 F.3d 932, 940 (9th Cir. 2007).
Although we retain jurisdiction over an untimely appeal from a criminal
judgment, Rule 4(b)’s timeliness requirements remain inflexible and “assure relief to
a party properly raising them.” Eberhart, 546 U.S. at 19. Watson contends that the
government forfeited its right to dismissal because it was put on notice of the appeal’s
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untimeliness, but nonetheless failed to object within a reasonable time. The
government, however, properly objected to the appeal in its motion to dismiss and its
merits brief, and it is entitled to dismissal. See Lopez, 562 F.3d at 1313 (“An appellee
may object to the timeliness of an appeal for the first time in its merit brief.”);
Garduño, 506 F.3d at 1292 n.7 (Failure to move for dismissal “does not constitute a
forfeiture where, as here, the appellee seeks dismissal for failure to timely appeal in
its response brief.”).
Having concluded that the government did not forfeit its objection, we decline
to consider whether we may enforce Rule 4(b)’s time limit sua sponte. Suffice it to
say that our order directing the parties to submit briefs on the timeliness of Watson’s
appeal was appropriate. See Day v. McDonough, 547 U.S. 198, 210 (2006) (noting
that a court is not required to suppress its knowledge of violation of its rules of
procedure).
II.
In his letter to the district court, Watson alleged that his total offense level had
been miscalculated under the U.S. Sentencing Guidelines Manual. In its order
denying the motion, the district court advised Watson that his letter was not the proper
avenue for relief and that he might be able to seek post-conviction relief under 28
U.S.C. § 2255. We agree with the district court and affirm its order without further
discussion. See 8th Cir. R. 47B.
Conclusion
We grant the government’s motion to dismiss Watson’s appeal from his
judgment of conviction and sentence. We affirm the district court’s order denying
Watson’s motion to reduce sentence.
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